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IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL DIVISION, PIETERMARITZBURG
CASE NUMBER: 2025-049909
In the matter between:
MARGARET ALOYSE SHAYO & OTHERS APPLICANTS
Versus
HARRY GWALA DISTRICT MUNICIPALITY FIRST RESPONDENT
MUNICIPAL MANAGER:
HARRY GWALA DISTRICT MUNICIPALITY SECOND RESPONDENT
JUDGMENT
P C BEZUIDENHOUT J:
[1] Applicant brought and urgent application which was filed on 9 April 2025
claiming certain relief in terms of Part A of the notice of motion. The certificate of
urgency was signed on 7 April 2025 and the matter was set down on 15 April 2025.
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[2] In the notice of motion it seeks relief that pending final determination of the
order in Part B the water supply be restored to nine properties namely 2[...] C[...]
Street, 4[...] C[...] Street, 6[...] H[...] Street, 5[...] B[...] Street, 3[...] S[...] Street, 7[...]
H[...] Street, [...] V[...] Drive, 4[...] T[...] A[...] and 7[...] S[...] J[...] Street. All these
properties are situated in Kokstad. The sought relief is that Respondents be
restrained from terminating or disconnecting the water supply and that they should
pay the costs on an attorney and client scale.
[3] The application was opposed by Respondents who first ly raised the issue of
urgency that the matter was not urgent and if there was any urgency it was self
created.
[4] On 15 April 2025 when the matter was before court and opposed by
Respondents it was adjourned to 24 April 2025. It was ordered that Applicants file
their heads of argument by 22 April 2025 and Respondent s by 23 April 2025. There
is no indication on the papers nor was any explanation provided as to what
happened on 24 April 2025. Applicants file d their heads of argument on 23 April
instead of 22 April 2025. There is no indication on the papers nor were there any
submissions that the matter was either removed from the roll or adjourned on 24
April 2025. The next date that can be determined from the papers is that on 12
January 2026 a notice of set down was filed for the matter to be heard on 21 January
2026 on the opposed roll. This is approximately 9 months after the application was
launched.
[5] Accordingly considering these facts and the time period that has lapsed it
would appear to me that the question of urgency is now academic and is no longer
an issue in this matter. It is therefore not necessary to give further consideration to
the issue of urgency. If the matter was indeed urgent it would have been heard on
24 April 2025 the date to which it was adjourned in respect of the interim relief which
24 April 2025 the date to which it was adjourned in respect of the interim relief which
was being sought.
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[6] It is still argued at this stage that the only relief which is sought is that of the
interim relief in Part A of the notice of motion.
[7] It is contended by Applicant that on 17 January 2025 officials of First
Respondent disconnected the water without notice at 2[...] C[...] Street, Kokstad.
There were quests at the premises at the time. Her requests that it not be
disconnected were ignored. The officials then went to the other properties
mentioned in annexure S1 a letter dated 2 6 March 2025 to the Municipal Manager.
The properties therein are 6[...] H[...] Street, 5[...] B[...] Street and 3[...] S[...] Street.
All of these premises are bed and breakfast establishments and had guests at the
time.
[8] In paragraph 9 of the founding affidavit she indicates that she is the owner of
nine properties. After the water supply was disconnected at the said four properties
she obtained the services of a private plumber to restore the water. No indication is
given of the exact time lapse that this occurred. Prepaid water metres have been
installed at the said properties since the year 2021 to 2022.
[9] On 12 March 2025 official s of First Respondent returned and removed all
connecting pipes at the said four properties and met er reading pipes at the other
properties. She carried on by supplying water out of her own from 17 January 2025
until 12 March 2025. It is submitted that the issue is one of mandament van spolie to
restore the status quo as she has a right of access to water in terms of section 27 of
the Bill of Rights.
[10] Further she had to be given adequate notice of any termination and that this
was not done.
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[11] Applicant deals with the question of urgency which I have already dealt with
and that the balance of convenience favours her that she has a clear right and no
alternative remedy. Attached to her affidavit were also affidavits of employees.
[12] The answering affidavit of Respondents was filed on 15 April 2025 when the
matter was set down for the first time and thereafter adjourned to 24 April 2025.
[13] It is contended that all the properties are commercial properties as they are
bed and breakfasts and that Applicant in actual fact owns ten properties and not
nine. Only four were disconnected on 16 January 2025 namely the ones mentioned
in annexures SM1 and paragraph 2 above. This was due to outstanding arrears. In
March 2025 the four properties were inspected by officials of First Respondent and it
was found that the water at said properties had been reconnected. The four
properties which had previously been disconnected were then disconnected again
due to tampering. It was then established that at the other six properties, the water
meters were bypassed they had been tampered with and were illegal. The job cards
for the disconnections are attached to the said affidavit. The four properties were
disconnected the second time on 7 March 2025 because of the unlawful connection
that had taken place. Mention is made of the Water Services Act 108 of 1997 (The
Act) and it is contended that if the water connections have been tampered with then
the service can be discontinued without further notice.
[14] It was further submitted that in respect of the four properties mentioned notice
of disconnection were provided to Applicant on 20 November 2024 . It was further
contended that an amount of R2 175 707.49 was still due and owing and payable by
Applicant to First Respondent. It also set out that in terms of section 4(2)(C)(iv) of
the Act the supply of water c an be disconnected, the procedure to be followed and
the Act the supply of water c an be disconnected, the procedure to be followed and
further that the user must pay a reasonable charge for the supply of water. In terms
of the Water Bylaws of First Respondent no one was allowed to interfere with the
water meter or disconnect it and that only First Respondent or the Municipality was
entitled to connect water services. No person may reconnect any installation if the
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water has been restricted or disconnected. No payment arrangements were made
for the prepaid metres. The disconnection notices were for the said four properties.
[15] It was submitted by Applicant that the notice in respect of the four said
properties was in dispute and that there was accordingly a dispute of fact in that
regard. It was further submitted that the amounts which First Respondent was
demanding from Applicant had prescribed as in term of the Prescription Act charges
for the supply of water would prescribe after a period of 3 years. Further that it was
a mandament van spolie to restore unlawfully deprived possession of the water.
[16] It was further submitted that there could be a counter spoliation and that is
what was the position in the present case as Applicant had after the water had been
disconnected obtained the services of a plumber to restore and reconnect the water
supply. The counter spoliation was therefore justifiable. Further submissions were
made in respect of urgency but as I have stated due to the lapse of time the question
of urgency is longer an issue.
[17] It was submitted on behalf of Respondents that Applicant based its application
on its constitutional right to the provision of water and that no notice was given
before the water services were terminated. It was submitted that the properties were
bed and breakfast properties were thus commercial of nature with substantial
arrears. Proper notice was afforded to Applicant for termination of the four
properties. They were thereafter unlawfully reconnected and then together with six
other properties that were found to have been unlawfully bypassed then
disconnected. It was submitted that no notice was necessary where an unlawful
connection or reconnection ha d been done. It also addressed the issue of urgency
which I have already dealt with. It was submitted that the Court should not come to
the assistance of Applicant based on their own unlawful acts. It was further
the assistance of Applicant based on their own unlawful acts. It was further
submitted that there was no real explanation in the affidavit of Applicant as to the
disconnection of the six properties which were found to have bypassed the water
meters and thus unlawful water connections.
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[18] It was submitted that the counter spoliation application were mutually
exclusive. The issue of prescription was only raised in the replying affidavit and that
a case had to be made out in the founding papers.
[19] The facts in this case are mostly common cause. Firstly in its notice of motion
Applicant seeks the reconnection of nine properties. In the founding affidavit
Applicant states that she is the owner of nine properties but makes no mention of the
disconnection of the water in the other five properties. In the answering affidavit it is
set out that Applican t is in actual fact the owner of ten properties and owes a
substantial amount to First Respondent.
[20] Applicant contends that she is seeking a mandament van spolie to restore the
water to her properties. The first contention is that notices were not provided that the
water was to be disconnected. In the answering affidavits of Respondents this is
dealt with and the four notices that were sent to her in respect of the said four
properties are attached. They were served at the premises during November 2024.
Although there may be a dispute as to whether there was personal service there is
nothing that I could find that there needs to be personal service on her but it is not in
dispute that the said notices were served at the said premises and in my view that
was sufficient. The water was then disconnected during January 2025. Applicant on
her own admission thereafter obtained the services of a plumber to reconnect the
water on the four properties. During March 2025 Respondents did an audit and
established that the water to the four properties had been illegally restored and the
water was then disconnected again. An audit of the other properties of Applicant
was then done and it was established that in respect of the other six properties water
was connected to the premises by bypassing the water mete rs. I t was therefore
illegal connections and the water was then accordingly disconnected.
illegal connections and the water was then accordingly disconnected.
[21] The issue of prescription as set out was raised for the first time in the replying
affidavit. It is a well known fact that an applicant must make out a case for the relief
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sought in the founding papers. Further Applicant states that water metres were
installed in 2021 to 2022. No specific date is given and further it was in 2024 that the
notices were served. It is accordingly not clear whether at that stage the issue of
prescription had arisen or not. It is indeed so that at this stage there is not an action
to claim the arrears from Applicant and that the issue of prescription can then be
raised at that stage. However with the information placed before the Court it is not
an issue to be decided at this stage and it is also not possible to determine whether
any of the claims for water have prescribed.
[22] The disconnections of all the water connections during March 2025 were due
to illegal connections and not due to outstanding payments.
[23] Section 4(1)(2) of the Act deals with the provision of water and in section
4(2)(c)(iv)(v) the circumstances under which water services may be limited or
disconnected and the procedures for continuing water services are provided for. The
water services bylaws of First Respondent also deals in paragraph 8 with the
disconnection of water installation from collection pipes and that water may be
disconnected and pipes removed in terms of the Credit Control and Debt Collection
Policy and also in terms of paragraph 17 referring to unauthorised services in
paragraph (b) deals with the disconnection of the services. In paragraph 71 it deals
with the issue that no other person than a municipal official shall make a connection
to infrastructure to which water services are provided. It further provides in
paragraph 75 that no customer who se access to water supply has been restricted or
disconnected may reconnect the services without the approval of the municipality.
[24] Applicant relies upon the counter spoliation as she admits that she
reconnected the water supply after it had been disconnected by First Respondent.
Firstly the conduct by reconnecting the water supply was illegal and could not have
Firstly the conduct by reconnecting the water supply was illegal and could not have
been done by a private individual. Secondly the issue at this stage, in my view on a
reading of the papers, is not the initial disconnection of the water connection during
January 2025 but the disconnection during March 2025 . This in my view is apparent
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from the fact that when the water supply was disconnected during January 2025
Applicant took no further steps but only took steps to bring an application after the
water supply to the various properties had been disconnected during March 2025.
The issue therefore in this case from a reading of the papers is the illegal
connections that were made at all the properties of Applicant and the disconnections
during March 2025 . Firstly the four properties referred to earlier w ere reconnected
by a plumber and secondly the other six properties it was found that the water
meters had been bypassed.
[25] The issue of a counter spoliation, in my view, does not arise in this situation
as the reconnection was illegal as appears from what is set out above and
Respondents were accordingly entitled to disconnect the water supply during March
2025 which only then initiated this application.
[26] However dealing with the issue of a counter spoliation the requirements
therefore are set out in the case of City of Cape Town v South African Human Rights
Commission and Others 2024 (5) SA 368 (SCA) in paragraph 38. It sets out therein
that counter spoliation is not unconstitutional and remains part of our law. However it
continues and ‘However, it must do so in stanter, within a narrow window period,
during which counter spoliation is legally permissible. The window closes and the
recovery is no longer in stanter when the dispoiler’s possession of the land is
perfected. Thereafter the city must not breach the right to privacy enshrined in
section 14(c) of the Constitution.’ In the present case the disconnection had been
completed and it was only sometime thereafter that it was reconnected. Therefore it
does not, in my view, fall within the requirements of a counter spoliation requirement.
[26] Counter spoliation is also set out clearly in the Law of Property Silberberg and
Schoeman 5th Edition at page 306 as follows:
Schoeman 5th Edition at page 306 as follows:
“As a general rule a possessor who has been unlawfully disposed cannot take
the law into his or her own hand to recover possession. Instead, he or she
will have to make use of one of the remedies provided by law, for example the
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mandament van spolie. But if the recovery is forthwith (instanter) in the sense
of being still part of the act of spoliation then it is regarded as a mere
continuation of the existing breach of the place and is condoned by the law.
This is known as counter spoliation (contra spolie). However, if a victim of a
first act of spoliation fails to act forthwith and takes the law into his or her own
hands to regain possession after the dispossession has been consequently
completed, his or her conduct would constitute a new breach of the p eace
and would be regarded as a separate act of spoliation, entitling the first
spoliator to a spoliation order against him or her.”
Accordingly as set out in this case that was indeed what the position was as it was
illegally reconnected some time later and therefore First Respondent was entitled to
disconnect the water supply.
[28] Accordingly in my view Applicant has failed to make out a case for the relief
which is being sought in Part A of the notice of motion. Respondents were fully
entitled to disconnect all the water supplies due to the conduct of Applicant.
[29] As set out I was only asked to deal with the relief in Part A of the notice of
motion which is for interim relief and not for the relief in Part B. However paragraph
8 of the notice of motion which falls under part B of the notice of motion is framed
that the interim order is granted by the court and would be made a final order. This
however cannot be done because it would depend on the decision of the court
hearing the matter.
[30] There is no reason why costs should not follow the result.
Accordingly the following order is made:
1. The relief sought in Part A of the notice of motion is dismissed with costs .
Such costs to be taxed on scale B.
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2. The relief in paragraph 7 of Part B of the notice of motion is adjourned sine
die.
____________________
P C BEZUIDENHOUT J.
JUDGMENT RESERVED: 21 JANUARY 2026
JUDGMENT HANDED DOWN: 14 APRIL 2026
COUNSEL FOR APPLICANTS: D SKOTI
Instructed by: Khayalethu Nondabula Attorneys
Kokstad
Tel: 039 727 2929
Email: k.nondabula@live.com
c/o: SB Bavu Inc
Pietermaritzburg
Email: info@sbbavuinc.co.za
COUNSEL FOR RESPONDENTS: J P PRETORIUS
Instructed by: Mdledle Incorporated
Pietermaritzburg
Email: emmerson@telkomsa.net
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